BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SIRSA.
Consumer Complaint no. 246 of 2018
Date of Institution : 04.10.2018
Date of Decision : 27.05.2019
Gurdeep Kaur, aged 49 years wife of Shri Mukhtiar Singh, resident of Quarter No.1-02, Type-2, Lancers Road, Timarpur, Delhi- 110054.
……Complainant.
Versus.
1- Astha Hospital, Multi- Speciality Hospital and Trauma Centre, Dabwali Road, Sirsa, Distt. Sirsa.
2- Dr. Rajnish Narula, Private Practitioner, C/o Astha Hospital, Sirsa, Distt. Sirsa.
..…Opposite parties.
Complaint under Section 12 of the Consumer Protection Act,1986.
Before: SHRI R.L. AHUJA……………… PRESIDENT
SHRI ISSAM SINGH SAGWAL ……MEMBER
MRS. SUKHDEEP KAUR…………..MEMBER
Present: Sh. Inderjeet Singh, Advocate for the complainant.
Sh. A.K. Gupta, Advocate for opposite parties.
ORDER
In brief, the case of complainant is that complainant during her visit at her in-laws house at village Mallekan alongwith her husband got sudden pain in her abdomen/ chest pain which was uncontrollable for her and family members of complainant took her op no.1’s hospital and op no.2 advised that it was a pain of stone and after diagnosing it was found in the report that “ A radio opaque calculus (33 mm) visualized in the right renal area”. That after seeing the report, the op no.2 advised the complainant that operation is only solution and through operation all the calculi is removed and then no calculi is build in the kidney. It is further averred that complainant was operated in Astha Hospital by op no.2 on 25.3.2013 and after giving her prescribed medicines, dressing, checkups, she was discharged on 27.3.2013. The complainant incurred a sum of Rs.50,000/- on account of operation from the ops. It is further averred that at the time of discharge, the doctor advised for getting removal of stent placed in her kidney after the period of three months from the day of operation and as per the advise of the doctor, the complainant further undergone operation for removal of stent from her kidney after three months. At that time, the complainant was advised medicines and it was assured that now there would be no problem to the complainant. The complainant took the medicines and routine check up as per advise of doctor till November, 2016. That thereafter, the complainant undergone follow up treatment from the op time to time and took the medicines as prescribed by the op. However, every time complainant raised the complaint that she is suffering from uneasiness and pain at her operated site, but every time the op no.2 told that it was a symptom of operation and nothing to worry. Thereafter, op no.2 gave the medicines but there was no permanent relief from those medicines. It is further averred that thereafter the complainant undergone treatment from CGHC Dispensary Timarpur, Delhi, Dr. Ram Lal Lohia Hospital, Delhi and also got conducted ultra sound from Focus Imaging Search Centre Delhi and also undergone tests/ ultrasound from Tirath Ram Shah Hospital, Delhi. The complainant also undergone the checkup from Diwan Chand Aggarwal Imaging Research Centre, New Delhi and all the medical institutions advised the complainant for second operation of the complainant, as the stone of 33 mm has not been removed out by operation conducted by op no.2 and this has been happened only due to the negligence on the part of op no.2. That the result of the subsequent reports shows that ops no.1 and 2 did not operate properly and committed the negligence in conducting the operation for removal of calculus which gone unsuccessful and complainant has suffered continuous pain but op no.2 did not care inspite of their knowledge. That after the second operation as advised by the subsequent doctors, the complainant approached the op no.2 in the month of November, 2016 and complained about the unsuccessful of operation and willful negligence committed by op during her operation, but op no.2 did not bother about the same and thus the ops have caused unnecessary harassment and humiliation to the complainant with ulterior motive to deceive money at the cost of her healthy and risk to life. That op no.2 never diagnosed her properly before and after operation when symptoms were same after every operation. Hence, this complaint for a direction to the ops to refund the expenses of Rs.50,000/- incurred by complainant in the hospital of ops, to pay compensation of Rs.7,00,000/- for pain, mental agony, harassment, medical bills etc and to pay a sum of Rs.2,00,000/- as the expenses on the second operation incurred by complainant and further to pay a sum of Rs.25,000/- as litigation expenses to the complainant.
2. On notice, opposite parties appeared and filed written statement taking certain preliminary objections that complaint is hopelessly time barred and is liable to be dismissed on this short ground, that complainant is estopped by her own act and conduct to file the present complaint, the complaint did not disclose any cause of action, that op no.2 is a well qualified MS Surgeon and has conducted thousands surgeries of this typ. The hospital of op is well equipped with all types of medical facilities, that the medical records of the hospital are not available as the same are destroyed after three years as per the medical rules. However, to the knowledge of the answering op, the op had conducted the operation for removal of the calculus by way of PCNL and was discharged thereafter. On merits, it is submitted that complainant was given due treatment by way of surgery. It is incorrect that op ever assured that after the operation further calculus would not develop. The surgery was conducted only for removal of stone and that too was successfully done. It is further submitted that complainant was discharged in a satisfactory condition. It is incorrect that Rs.50,000/- were charged. The complainant has not placed on record any bill or invoice. It is further submitted that a stunt is applied at the time of operation which is required to be removed after three months, which is a part of the procedure in PCNL surgery. The complainant has not placed on record any further treatment slips or prescription. It is further submitted that op is not aware of any such second operation from Delhi. There are always chances of reoccurrences of the stone and reoccurrence cannot be checked in any medical treatment or surgery. Remaining contents of the complaint are also denied and prayer for dismissal of complaint made.
3. The complainant produced her affidavit Ex.CW1/A, copy of certificate of Astha Hospital Ex.C1, detail of charges Ex.C2, copy of receipt of Rs.21,000/- Ex.C3 and copies of medical records, bills etc. Ex.C4 to Ex.C25. On the other hand, ops produced affidavit of Dr. Rajnish Narula op no.2 Ex.RW1/A.
4. We have heard learned counsel for the parties and have perused the case file carefully.
5. It is undisputed fact between the parties that complainant in the year 2013 approached the ops with abdomen/ chest pain but later on it was diagnosed and found that a radio opaque calculus of 33 mm visualized in the right renal area. The complainant was operated in the hospital by op no.2 on 25.3.2013 and after prescribing medicines, she was discharged on 27.3.2013 and in this way she remained there from 25.3.2013 to 27.3.2013 and thereafter stunt placed in her kidney was also removed on the advise of op no.2. As per allegations of complainant, she had undergone treatment from CGHC Dispensary Timarpur, Delhi, Dr. Ram Lal Lohia Hospital, Delhi and also got conducted ultra sound from Focus Imaging Search Centre Delhi and also undergone tests/ ultrasound from Tirath Ram Shah Hospital, Delhi and she also undergone checkup from Diwan Chand Aggarwal Imaging Research Centre, New Delhi and all the medical institutions advised the complainant for second operation of complainant, as the stone of 33 mm has not been removed out of operation conducted by op no.2 and this has been happened only due to negligence on the part of op no.2. The perusal of the evidence of complainant reveals that complainant has placed on record documents of Astha Hospital Ex.C2 which proves the fact that she remained admitted from 25.3.2013 to 27.3.2013 and paid Rs.21,000/- to the hospital op no.1 but thereafter she approached other hospitals in the year 2018 which is evident from the record of other hospitals from Ex.C7 to Ex.C25. The complainant has not explained that during period 2013 to 2018 whether she was suffering from pain or not nor any document has been placed on record from which it could be presumed that she ever took any treatment from any other hospital during this period and she was suffering from the kidney stone. Nor she has explained the reason for keeping herself mum for such a long period if she was suffering from pain of kidney stone. So, it appears that present complaint has been filed after period of more than five years from the date of cause of action when she was discharged from the hospital of ops on 27.3.2013. Section 24(A) of the Consumer Protection Act, 1986 deals with the limitation period for filing the consumer complaint and it reads as under:-
24A. Limitation period. – (1) The District Forum, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen.
(2) Notwithstanding anything contained in sub-section (1), a complaint may be entertained after the period specified in sub- Commission or the National Commission, as the case may be that he had sufficient cause for not filing the complaint within such period.
6. The case law relied upon by learned counsel for ops in case titled as Parmod Kumar Versus M/s Global Health Private Limited and others, 2017 (2) CPR 316 (NC) regarding limitation is fully applicable to the facts and circumstances of the present case. Moreover, the complainant has not placed on record any evidence from which it could be presumed that ops were negligent in performing their duties while conducting the operation on the person of complainant.
7. In view of above discussion, present complaint of complainant does not appear to be maintainable and same is hereby dismissed but with no order as to costs. A copy of this order be supplied to the parties free of costs. File be consigned to the record room.
Announced in open Forum.
Dated:27.05.2019. President,
District Consumer Disputes
Redressal Forum, Sirsa.
Member Member
DCDRF, Sirsa DCDRF, Sirsa
